ND SHARED PARENTING INITIATIVE INTENT
That Courts and the Legislature, recognizing the long history of traditional and statutory protections afforded child and parent bonds and recognizing the fundamental liberty interest parents enjoy respecting the care, custody and companionship of their children, finds and
declares the following with respect to the intent of this initiated measure and this state’s statutes related to marriage, family and marital dissolution. This measure ensures that both parents shall exercise their parental responsibilities equally which are in the best interest of our children:
(1) That an intact, involved two-parent home provides the optimal environment through
which children grow into productive and responsible adult citizens; the next closest thing to this in a dissolved marriage is shared parenting with a presumption of equal legal and physical custody.
(2) That parents are the primary “polestar” with respect to developing their children. Our
society, state and statutes are secondary structures designed to support, not supplant, both
parents in their role as the primary shapers of their children;
(3) That mothers and fathers provide unique and invaluable contributions towards the
development of their children. Each parent’s contributions to the upbringing of their
children are indistinguishable and equally necessary to assure children the best
opportunity to develop into healthy citizens;
(4) That children should be separated from their parents only under the most compelling
and unusual circumstances necessary to protect the child from substantial and imminent harm; using the clear and convincing evidentiary standard. Using current NDCC 27-20-44 (Termination of Parental Rights) and NDCC 14-09-06.2 best interest standards as a guideline the courts can determine unfitness of a parent. No parent shall be denied a jury trial for fitness if requested! In the event of a finding of unfitness of one parent, the best interests and welfare of the child is determined utilizing current best interest standards as defined in existing state code. Parents who have not previously had a fitness hearing shall be granted the right to petition the court for a fitness hearing at any time for a change in custody. If a parent cannot prove (in a prima fascia hearing) unfitness by clear and convincing evidence a joint custody change cannot be denied – this will reduce court time and expense.
All decisions or actions under state law shall be gender and race neutral. Gender cannot be a determining factor in parenting plan formulation or custody modification decisions. This state has Domestic Violence laws and Abuse & Neglect laws already in place defining unfit behavior so this measure does not need address these issues.
(5) That children have frequent and continuing physical contact with both parents under
joint legal and physical custody arrangements when the parents live separately including
after parental separation or dissolution of marriage. The proper role of the state in this
situation is to interfere to the least degree in familial relationships with the specific
purpose of preserving maximum time allocations among parents and their children;
(6) That parents may, and should be encouraged to, reach any agreement, outside the legal system, mutually acceptable to them regarding their parenting time allocations as may reflect the individual circumstances of the parents. In the event parents cannot reach agreement on the parenting arrangement, it is the specific intent of this initiative that parents have a presumption of equal time with the children; Parents shall develop a joint parenting plan taking into account the fundamental liberty interest of the parents, encouraging parents to craft a plan based on their unique family circumstances in both divorces and separations. If parents cannot agree then they shall mediate to reach a presumption of equal time shares as close as they possible can under the conditions. Mediation shall be used for all of instances that cannot be agreed upon to lessen the courts case load.
(7) That the judiciary in contested custody proceedings demonstrates consistent
application of the presumption so that litigants develop no perception of advantage in
proceeding to an adversarial hearing on custody matters – the current system forces one parent to stipulate for joint legal custody and is told they will not win custody - this is the reason that most fathers settle prior to going to court not having the finances to fight for a Constitutional right as a parent.
(8) That this article discourages children from being alienated or disenfranchised from
their parents’ lives by the geographical relocation away from either parent or through the
interference of either parent;
(9) That this article establishes clear policy regarding interference with the
relationship of children with their parents when parents live separately; and
(10) In accordance with these findings, state declares public policy
is furthered, and its specific intent that a child’s well-being is effected, by recognizing
both parent’s fundamental liberty interest in the care, custody and companionship of their
children.
PARENTING
(a) In cases of marital dissolution or unmarried parentage, it is the policy of this state that
both parents enjoy a presumption of joint legal and physical custody of their children. Joint physical custody of the children is defined as (equal physical custody) a presumption of equal time with the children; or any written time-sharing agreement agreed upon by the parents. This is not a mandatory 50/50 time-shares but a parent cannot be denied 50% time if requested. Parents (not the court) work out the time-shares in a parenting plan and both parents are primary caretakers and both are obligors. If parents do not live in the same town they will craft a time shares as close to equal time possible.
(b) The burden of overcoming the presumption rests on the parent challenging the
presumption. The presumption may be overcome only by demonstrating an unfitness of
the parent being challenged that would cause substantial harm to the children. The clear
and convincing evidentiary standard shall be used in making a fitness determination.
(c) During the pendency of any custody case, any temporary orders issued shall maintain an equal time-share allocation between both parents and their children. Both parents shall
enjoy joint legal and physical custody of the children while any temporary order is in
effect. The state and counties shall enforce all visitation orders!
(d) If both parents were not residing together in the home before filing for custody, then
any temporary orders shall include a reasonable, specified time-table to establish an equal
time-share allocation within 14 days.
(e) Allegations of substance, spousal or child abuse or neglect and any subsequent
issuance of protective orders are not sufficient to cause cessation or reduction of parent child contact. Only a written finding of substantiated abuse, by professional counselors and psychiatrists with no conflict of interest - not attorneys or DHS employees, is sufficient to allow the court to deviate from an equal time-share arrangement and award custody to one parent. An allegation of abuse is considered substantiated if affirmed using the clear and convincing evidentiary standard. In no instance may the court limit parent-child contact during the pendency of custody determinations absent compelling necessity to prevent substantial and imminent harm to the child. If no evidence can be put forward in a prima facia hearing as to unfitness or abuse there shall be no need for the courts to order a guardian at litem or child protection investigator!
(f) Knowingly making false allegations of child or spousal abuse is sufficient grounds to
challenge parental fitness of the accuser. Allegations raised in the context of divorce or
custody proceedings deserve heightened scrutiny as to their veracity. Any such false allegations shall be punishable with 30 days in jail and a $500 fine plus paying attorney fees of the falsely accused. To reduce on false allegations, false allegations shall be prosecuted by the states attorneys office in each county.
(g) The state shall consider all abuse allegations as criminal complaints affording the
accused all rights and due process of law available to those criminally accused.
(h) Since modern-day video and audio recording devices are readily available, affordable
and effective they are admissible as tools to affirm ongoing patterns of abuse.
(i) The court shall require parents to prepare and submit a parenting plan to the court
reflecting parental preferences and agreement on the matters of substance concerning the
children’s education, upbringing and religious training.
(j) The parents shall share decision-making authority and responsibility as to the
important decisions affecting the child’s welfare and when parents are unable to agree,
they will submit to and abide by the decision of a preselected mediator. Parents are encouraged to mediate outside of the court system to lessen the cost to the state (taxpayers). The mediation does not have to be done by the courts or social services. Parents may also agree to any conditions out side of this intent without court intrusion.
(k) The court, in making a determination of parental fitness pursuant to this section shall
consider and evaluate all the following factors of current best interest standards and termination of parental rights as a guideline.
In any adversarial custody hearing, the judge shall provide written findings of fact and
conclusions of law when entering any order not reflecting maintenance of the rebuttable
presumption of joint legal and physical custody and written findings that enumerate
which of the factors set forth in subsection (k) of this section are applicable and by what
evidence these factors were demonstrated. If a judge is charged with not follow the laws and rules of court they shall be removed from their duties by the county states attorney until a BCI investigation is completed. If found to be guilty of not enforcing the laws of the state and federal government they shall be removed indefinitely.
RELOCATION
(a) Where parents enjoy joint legal and physical custody of children, relocation by either
parent with the children may only take place by joint agreement of both parents. In the
absence of a joint relocation agreement, the burden of overcoming the presumption
against relocation is on the relocating parent. A move from the children’s existing school
district is considered relocation subject to all notice, response and hearing procedures. It is assumed that it is in the best interest of the children to stay in the current town, school system where family and friends reside.
(b) The relocating parent shall file, with the clerk of the court that issued the custody
order or that has current jurisdiction over custody proceedings, a notice of intent to
relocate and a revised parenting plan and send a copy of the notice and revised plan by
registered mail to the non-relocating parent no later than ninety days before the date that
the relocating parent intends to move.
(c) No later than thirty days after receipt of the notice from the relocating parent, the
non-relocating parent must file notice of objection and a revised parenting plan to preserve the presumption against relocation with the children. Both the relocating and the
non-relocating parent’s revised parenting plans shall be submitted to a preselected
mediator. If the mediator is unable to resolve the parenting plan differences, then the
court may issue a revised parenting plan by written findings, after an evidentiary hearing
for which notice has been provided to both parents, in accordance with the considerations
set forth in subsection (g) of this section. The relocating parent has the burden of proof at
the evidentiary hearing.
(d) If the non-relocating parent does not file a notice of objection, the court may approve
the relocation with the children, unless the court has any knowledge that the
non-relocating parent desired to file an objection but was unable to file within the
specified time limit.
(e) If relocating parent moves with the children before a signed, revised parenting plan is
in place, they are guilty of kidnapping and subject to criminal prosecution by the county states attorney or the state attorney general.
(f) If uncontested, a court may approve the request upon written stipulation of both
parties, without the requirement of a hearing.
(g) In determining whether the relocating parent has overcome the presumption against
relocation with the children, the court shall give equal consideration to all of the
following:
(1) Whether the child will lose substantial contact, joy and rearing with the non-relocating parent;
(2) Whether the relocation with the children would improve the general quality of life for
the children, giving primary consideration to the disruption, caused to the day-to-day
relationship between the non-relocating parent and the children;
(3) The relocating parent’s motives for seeking the relocation;
(4) Whether the costs of transportation or revised access time is financially affordable by
both parents;
(5) Whether the relocation with the children will cause hardship or undue burden on the
non-relocating parent; and
(6) Access to extended family support; and
(7) The impact on the child including whether the relocation is harmful to health or well
being of the child.
(8) Children will stay in one school system during a school year unless agreed upon by both parents.
(9) Any grand parent or family member currently actively involved in a child’s life prior to a divorce or separation shall not be denied continued contact with any child of divorce.
PARENTING TIME CONTEMPT
(a) When one parent willfully prevents the other parent from their share of time with the
children, the court shall in all cases, absent clear and convincing evidence written in the
record to justify a denial, hold the violating parent in contempt of court and order the
violating parent to give compensatory time to the other parent equivalent to the lost time
and shall additionally order one of the following remedies:
(1) Payment of the expenses and attorney’s fees of the parent bringing the contempt
action;
(2) A One thousand dollar minimum fine;
(3) Confinement in jail; or
(4) A change in custody.
(b) The court may order any of the following additional remedies as appropriate:
(1) Requiring participation of the violating parent in a counseling program with supported research and common sense about the importance of the children’s access to the other parent; or
(2) Order the violating parent to pay the cost of counseling to reestablish the parent-child
relationship with the other parent.
(c) The court and law enforcement officials shall enforce all visitation and custody upon the parents. If a court does not the Attorney Generals office shall conduct a BCI investigation if requested upon the courts and prosecute if any violations are found.
FINANCIAL RESPONSIBILITIES, CIVIL LIABILITY, JURISDICTION
(a) Each parent is financially liable for their own attorney’s fees and the relocating parent
is liable for all court costs. Both parents shall share equally all mediation costs. If a parent consistently refuses to work out issues requiring mediation that parent shall then pay all mediation costs.
(b) Where both parents are providing joint shared parenting of their children, the parents
shall alternate the dependent tax deductions, exemptions and credits each year unless otherwise agreed upon terms are set. When one parent does not abide by this order, they owe a civil liability to the other parent in the amount of the increase in the other parent’s tax liability and the other parent is eligible to claim the dependent tax deductions, exemptions and credits in the following two tax years.
(c) A court only has subject matter jurisdiction when the state intervenes to rescue the
children. When the children are being cared for and under no substantial and imminent
threat to their well-being the court has no jurisdiction.
(d) All law enforcement officers are permitted and required to enforce all court orders
arising under this article.
(e) All unedited video or tape recordings are admissible as evidence in court.
(f) Meetings, hearings or conferences may not be held without properly functioning video
or audio recording devices provided by the court.
(g) All recorded meetings, hearings or conferences shall be reproduced in unedited form
at the request of any of the parties to the action and provided to the requesting parties
within ten days of the request.
(h) Child support is calculated by the current ND Administrative codes for Equal Physical Custody in Ch 75-02-04.1-08.2. “Equal duty of support”. Both parents are considered obligors. Each parent will pay half of the costs needed for the children unless other wise agree upon terms are met.
(I) Medical costs will be shared equally or as required by law. In cases of an emergency the parent with visitation will take the child to the hospital and inform the other parent immediately. Medical decisions will be made jointly on all other medical needs.
(J) That the Domestic Violence organizations, ND Association of Counties, DHS, legislature and Judiciary acknowledge the research and studies supporting Shared Parenting and the harm caused in the current system. See research on ndspi.org!
(k) No child will be put at risk due to domestic violence, abuse and neglect issues. The state of North Dakota already has laws in effect to protect our children and others from such abuse. DHS, the Legislature and the Judiciary acknowledge research on Domestic Violence, abuse and neglect. See research on ndspi.org.
APPLICABILITY
NOTE: The purpose of this measure is to enact a Shared Parenting Act focusing on both the child and parents rights. In Current NDCC both parents can meet all requirements of the best interest standard but the courts still will award custody to one parent. Then it is almost impossible to change the custody agreement. The Initiative would establish a rebuttable presumption of joint legal and physical custody of their children in child custody matters. It outlines procedures and criteria to be used when determining the custody of children. It also provides procedures addressing relocation of parents after divorce. None or little increase of judges, social workers or court employees will be needed to enact this measure due to parents are encouraged to mediate out side the legal system.
This measure removes state and judicial intervention lowering costs to the state and taxpayers. This measure does not put the state out of any Federal compliance! The fiscal cost to the state should be minimal if not save the state financial resources! Shared Parenting reduces the adversarial system we currently have and will reduce repeat litigation. This measure will as well reduce high conflict situations!
This intent is also a legal reference to all Constitutional law supporting parents rights, all US Supreme Court case law references to the rights of parents, all ND case law in civil matters, all North Dakota Century Codes, all ND Administrative codes. Any person or group of persons who put forward misleading or false information in this matter are guilty of a false political advertising and are guilty or a class “A” misdemeanor!